[83 Ariz. 165] Conner & Jones, and A. O. Johnson, Tucson, for appellant.
Martin S. Rogers, Tucson, for appellee.
This appeal involves the liability of a beverage bottler to an ultimate consumer for personal injury damages sustained as a result of drinking a beverage containing a dead fly. The complaint alleges:
'* * * That the defendant is or was at all times hereinafter mentioned engaged in the bottling of, or preparation of, a beverage known as Coca Cola in individual bottles for human consumption and thereby warranted the substance contained in said bottles to be fit for human consumption.
[83 Ariz. 166] 'That on or about the 28th day of October, 1955, the plaintiff purchased a bottle of Coca Cola prepared and distributed by the defendant-company and that on said day he consumed a part of the contents of the same; that the contents of said bottle which came into the plaintiff's mouth included a dead fly; that immediately the plaintiff was made ill and continued thereafter to be extremely ill from what he had consumed and was in the process of consuming.
'That on account of the defendant's said act in providing the plaintiff with said substance in the manner stated resulting in illness to the plaintiff, causing him to suffer pain and metal anguish and loss of earnings, and as a result thereof the plaintiff was damaged in the sum of Three Thousand and No/100 ($3,000.00) Dollars.'
The plaintiff, Friou Cathey, introduced evidence to show that he purchased a bottle of coca-cola from a drugstore. The salesclerk took the bottle from a cooler, opened the bottle at the cooler, and placed it on the counter about two or three feet away in front of Cathey. The bottle remained on the counter for about a minute before Cathey began to drink from it. After he had consumed about a third of the bottle something caught in his throat which caused him to spit the contents of his mouth back into the bottle. Examination revealed a dead fly in the bottle. Cathey became ill and vomited three times that evening according to his testimony and that of his wife, and he experienced spells of nausea for a week or more afterward. Evidence established that the drugstore had purchased the bottle of coca-cola from the defendant, Crystal Coca-Cola Bottling Co.
The defendant introduced evidence to show that its bottling plant was operated under sanitary conditions common to similar bottling plants with the usual inspection after washing and before filling the bottles. Defendant also presented testimony to the effect that coca-cola bottles can be opened and the cap replaced without any obvious indication of tampering.
At the close of plaintiff's case and again at the close of all the evidence, the court denied the defendant's motions for a directed verdict. The court instructed the jury on the elements of liability under implied warranty as well as in negligence. He also gave instructions on the inference which arises under the doctrine of res ipsa loquitur and when it applies and left to the jury's determination whether the plaintiff was entitled to the benefit of this doctrine.
The jury returned a verdict of $1,000 for the plaintiff and judgment was entered accordingly. The court denied defendant's motion to set aside the verdict and also denied defendant's motion for a new trial on condition that plaintiff remit $400 of [83 Ariz. 167] the $1,000 judgment within ten days. The plaintiff made a highly conditional offer of remittal which did not amount ot an acceptance of the remittitur. The defendant appeals from the judgment and the order denying these motions.
Defendant-appellant sets forth thirteen assignments of error in his brief. Because each proposition of law asserted by defendant is used to support a group of these assignments, for the sake of simplicity, we shall discuss the correnctness of each proposition of law in order to determine the propriety of the judgment entered.
Defendant's Proposition of Law A reads:
'There can be no action for breach of warranty of a food or beverage when there is no privity of contract between the parties.'
This precise proposition has never before been presented to this court for decision. Defendant admits that there is a split of authority on this proposition. He cites the New York case of Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533, in support of his position. A number of other jurisdictions hold that there can be no implied warranty in the absence of privity of contract and admit of no exception in the case of foodstuffs and beverages. Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Drury v. Armour & Co., 140 Ark. 371, 216 S.W. 40; Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A.L.R. 972; Vaccarino v. Cozzubo, 181 Md. 614, 31 A.2d 316; Carlson v. Turner Centre System, 263 Mass. 339, 161 N.E. 245; Smith v. Salem Coca-Cola Bottling Co., 92 N.H. 97, 25 A.2d 125; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Lombardi v. California Packing Sales Co., R.I., 112 A.2d 701; Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200. However an imposing group of jurisdictions hold that there is an exception to the general rule in the case of manufacturers of foodstuffs such that an implied warranty of fitness inures to the benefit of the ultimate consumer though there be no strict privity of contract running between the manufacturer and consumer. Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 163 P.2d 470; Heimsoth v. Falstaff Brewing Corp., 1 Ill. App.2d 28, 116 N.E.2d 193; Anderson v. Tyler, 223 Lowa 1033, 274 N.W. 48; Coca-Cola Bottling Co. v. Savage, Miss., 89 So.2d 634; Williams v. Coca-Cola Bottling Co., Mo.App., 285 S.W.2d 53; Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N.E. 557; Sweeney v. Cain, Tex.Civ.App., 243 S.W.2d 874. We believe that the decisions in the latter group of jurisdictions represent the more recent trend and provide the better reasoned authority. Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162. Most particularly we quote with approval from Jacob E. [83 Ariz. 168] Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828, 829, 142 A.L.R. 1479, as follows:
'After having considered the matter most carefully, we have reached the conclusion ...